Mass. high court considers casino repeal question on November ballot

BOSTON — The debate over whether voters should be allowed to decide the fate of Las Vegas-style casino gambling in Massachusetts had its day before the state’s highest court Monday.

The Supreme Judicial Court heard arguments in an appeal over a proposed November ballot question that would effectively repeal the 2011 law that opened the door for at least three regional casinos and one slot parlor in Massachusetts. The court is expected to rule on the case sometime before July.

The anti-casino group “Repeal the Casino Deal” gathered the required 68,911 signatures from voters to place the question on the ballot. But the state Attorney General’s office ruled in September that the proposal violated the state constitution and declined to certify it.

In court Monday, Assistant Attorney General Peter Sacks argued that the ballot question is not permissible because it would result in casino developers losing property rights without being compensated. He said gambling companies have an “implied contractual right” to see the casino licensing process completed given the significant financial investment they have made in developing and promoting their projects.

Sacks said the situation is akin to when a company applies for a government contract through the public bidding process. Applicants in that instance, he said, are entitled to recovering certain costs if the public body does not complete the process.

But Thomas Bean, a lawyer representing “Repeal the Casino Deal,” countered that compensation isn’t required since there are no existing property or contract rights. Instead, he argued that the state has the right to revisit and revise laws impacting “public morals and welfare” at any time through its so-called “police powers.”

Justices on the seven-member panel pushed back on that assertion.

“The police powers don’t trump the state constitution,” said Justice Robert Cordy. “You can’t say, ‘We have police powers therefore we can take contract rights away without compensation.“’

He noted that state gambling regulators have already awarded a slot parlor license to Penn National Gaming to expand gambling at Plainridge Racecourse, a harness racing track in Plainville.

“So a five -year exclusive license that’s already been awarded after a thorough process and at a substantial cost to the applicant can simply be taken away with a big ‘never mind’?” said Cordy. “You can do that? Without compensation? Wow.”

Both sides in the casino debate said that they were encouraged by the court’s inquiry.

Michael Mathis, president of MGM Springfield, which proposes an $800 million casino project, said the justices were right to ask about the potentially “chilling” impact on Massachusetts’ business climate.

“We deserve an opportunity to go forward,” he said, adding that the company has spent between $30 million and $40 million in its bid to win the sole casino license in the state’s western region. “To not even get to the point of opening our facility...is troubling, as a business that looks at investment opportunities and evaluates risk.”